Indian supreme court starts hearing on decriminalising gay sex

Celebrities among those speaking out against 1861 law and how it ruins their lives

As the Indian supreme court begins a landmark hearing on homosexuality on Tuesday, gay men and women and human rights activists hope they are finally on the last leg of a 20-year legal battle to decriminalise gay sex.

The court will begin hearing numerous petitions arguing that gay sex between consenting adults must be made legal. But this hearing will be different from earlier ones.

For the first time, a few well-known gay individuals, a hotelier, a famous chef, and a classical dancer, are slated to give personal accounts of how the 1861 law has ruined their lives, thrust shame on them, and directly affected their chances of happiness.

For Anjali Gopalan, the founder of the Naz Foundation, the New Delhi NGO working to prevent HIV and AIDS which filed the first petition against the law in 2001, the moment “feels right”. She is hopeful the court will this time strike down its own earlier ruling upholding the current law.

“The momentum has built up for this moment. We have a clutch of petitions from people from all walks of life. We have celebrities giving their personal testimony. Then we have had an important ruling recently by the courts upholding privacy. And we have seen a shift in recent years, more people coming out to take a stand. The gates have opened, as it were, and you can’t close them now,” Gopalan said.

As it stands, Section 377 of the colonial-era law says whoever has carnal intercourse “against the order of nature” with any man, woman or animal, will be punished with imprisonment for life.

In 2009, the Delhi high court struck it down, ruling that the ban on gay sex violated fundamental rights. The court legalised homosexual acts between consenting adults.

In 2013, the supreme court sent out shock waves by reversing the high court’s judgment, prompting “Global Day of Rage” demonstrations in 30 cities worldwide. It was outrage over that ruling which opened the floodgates to numerous eminent Indians coming out openly – people who had previously kept their sexual orientation resolutely private.

Group after group representing gay people and the LGBT community filed petitions protesting the ruling. It is this clutch of petitions which will be heard in court.

Momentum for change, said Ashok Row Kavi, a prominent LGBT rightsactivist, was now virtually “unstoppable”. Kavi said after the Delhi high court ruling legalising gay sex, hundreds and thousands of gay people came out, to their parents, to their friends and to their employers.

When the supreme court overturned the ruling, they could hardly go back into the closet, he said. “We got calls from parents, concerned about what would happen to their children. We got calls from HR managers in companies asking if the police might come and arrest employees who had come out. Our helpline was deluged. There was just no turning back after that. We had to keep going and keep pushing,” said Kavi.

Another factor heightening optimism is the supreme court’s ruling last August on the right to privacy. The court ruled privacy was a fundamental right of all Indians, adding that sexual orientation was an essential attribute of privacy.

This, said the supreme court lawyer Suraj Sanap, who represents some of the petitioners, means the path has been cleared for a ruling legalising gay sex. Sanap said the privacy ruling was effectively a major development in jurisprudence which laid the ground for what gay people and activists are hoping will be a ruling decriminalising gay sex.

“The supreme court’s ruling on privacy last year was critical. It was a de facto overturning of its own earlier 2013 ruling against gay sex. That means there is really no leeway for the judges to argue otherwise than for gay sex to be legalised,” said Sanap.

Amrit Dhillon

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